dissenting. The complaint in this case alleged that Wal-Mart was liable to the appellant because it had committed the tort of malicious prosecution. As soon as WalMart notified the appellant that his check had been returned for insufficient funds, appellant agreed to come in and pick it up when he received his disability check. Nine days later the appellant paid his insufficient check and paid Wal-Mart an additional ten dollars for its trouble. Although Wal-Mart accepted payment for the check on February 2,1985, it failed to so notify the prosecutor until after appellant was arrested on April 11, 1985.
When a store files an arrest warrant affidavit charging an individual with a violation of the “Hot Check Law”, and subsequently accepts payment for the check, the store should have a duty to inform the state that the check has been paid. A failure to do so is clearly evidence of false prosecution which should be considered by a trier of fact. Doing nothing can be as serious as doing something wrong.
Appellant’s affidavit states he immediately notified WalMart that he would make his check good at the first of the month. Nonetheless, Wal-Mart swore to the prosecutor that appellant had violated the “Hot Check Law”. By not bothering to contact the prosecutor again to inform him that the appellant’s check had been paid, Wal-Mart failed to disclose to the prosecutor the whole truth. Certainly the prosecutor would not have issued the arrest warrant had he known all the facts. Under these circumstances a jury could have found that Wal-Mart acted with malice after accepting payment for the check.
In my opinion there were clearly disputed facts which would support an allegation of malicious prosecution; therefore, it was error for the trial court to grant a summary judgment.